COVID-19 Can Be Occupational Disease, Colorado Court Says in Worker Death Case

For the first time, a Colorado appellate court has concluded that COVID-19 can be an occupational disease that is compensable under the state’s Workers’ Compensation Act.

The Colorado Court of Appeals ruling came in a case in which Life Care Centers of America and its insurer, Old Republic Insurance Co., sought review of decisions by an administrative law judge (ALJ) and the Industrial Claim Appeals Office awarding workers’ compensation benefits to an employee of a Life Care skilled nursing facility who contracted COVID-19 and died.

The appellate court backed the award of benefits to Vincent Gaines and his surviving spouse, Sheila Jackson, agreeing that there was sufficient evidence that it was more probable than not that Gaines became infected at work and there was no credible evidence that Gaines contracted COVID at home or anyplace else.

The appeals panel commented:

“The novel virus raises a unique consideration under Colorado workers’ compensation law. Because of the nature of a virus, it cannot be proven beyond a reasonable doubt precisely where or from whom an individual had the exposure that transmitted the disease. Like the ALJ, we believe a reasoned statistical analysis can determine where the site of exposure was most probable. The ALJ concluded that it was more probable than not that the exposure site was within the facility. In our view, the ALJ used the appropriate burden of proof.”

Under the law, an employee is entitled to compensation if “the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment and is not intentionally self-inflicted.”

Gaines worked in Life Care’s housekeeping department for more than 20 years. His duties included cleaning and maintaining the main areas of the facility, including the dining room, hallways, common areas, and lobby. He also disposed of the trash. There was testimony that Gaines may also have occasionally transported infected patients to the isolation room.

Gaines became sick with COVID-19 on or about May 26, 2020, and the facility declared a COVID-19 outbreak three days later. By the end of the outbreak on July 29, 2020, there were 35 among residents, with eight resident deaths. Among the staff, there were 13 known cases and nine probable cases. Gaines was the third staff member to test positive. On June 2, 2020, he was hospitalized with a diagnosis of acute respiratory failure with hypoxia due to pneumonia. Gaines died a month later.

On June 8, 2020, Jackson, on Gaines’s behalf, filed a workers’ compensation claim based on his exposure to and contraction of COVID-19 at the facility. The claim went before an administrative law judge (ALJ).

The appeals court supported the ALJ’s findings of fact and conclusion that Gaines had suffered a compensable occupational disease causally related to his employment. The court also agreed with ALJ that it was more probable than not that Gaines’s COVID-19 infection was related to his presence in Life Care’s facility to discharge his work duties.

Life Care and Old Republic were ordered to pay temporary total disability benefits from June 2, 2020, through June 30, 2020, and to pay death benefits to Jackson.

In its appeal to the Industrial Claim Appeals Office, Life Care asserted that the ALJ’s order was not supported by substantial evidence. Life Care further contended that the ALJ’s order violated the public policy underlying the statute pertaining to occupational diseases. The appeals panel affirmed the ALJ’s order and Life Care appealed to the court.

The Colorado Court of Appeals noted that Workers’ Compensation Act expressly limits its review to whether the findings of fact entered by the ALJ are supported by substantial evidence or whether the award or denial of benefits is not supported by applicable law.

The factual record supports that at the time of Gaines’s exposure, the working conditions included a high prevalence of COVID-19. A doctor testified that COVID-19 was present in 30% of the residents, and in 12 or 15 staff members. Thus there was person-to-person transmission within that workplace environment. The doctor said that no available evidence suggested that Gaines was exposed to COVID-19 in his home, s asserted by Life Care. Also, because the exposure rates were very low in the county, he said that it was highly unlikely that Gaines encountered a source of COVID-19 in the community. He concluded that the Life Care facility was the “highest medically probable environment” in which Gaines could have contracted COVID-19. His opinion was unrebutted.

Life Care maintained that Gaines did not have direct contact with patients as a member of the housekeeping staff. The ALJ had concluded that, regardless of whether Gaines had direct contact with patients, the expert testimony showed that it was still more probable than not that Gaines became infected at work. The ALJ also found no credible evidence that Gaines contracted COVID at home or anyplace else.

The appeals court said that the ALJ’s analysis was “detailed and reasoned.”

“A claimant must establish a reasonable causal connection but is not required to prove causation with mathematical certainty or beyond a reasonable doubt; rather, it is sufficient that the claimant present facts and circumstances indicating a reasonable probability that his disease was proximately caused by the conditions of his employment,” the appeals court wrote.

Life Care had argued that the legislature intended to limit the scope of occupational diseases to those that result from working conditions that are “characteristic of the vocation.” But the court found ALJ’s finding regarding Gaines was consistent with that assumption.